Sometimes it is the little things in life that, once discovered, change the outcome of a trial.

This particular case took seven years to finally offer the family some sense of closure over the death of their 13-year-old son. The young boy was killed in a car wreck, as the drunken driver of the vehicle lost control and slammed into a tree. The car was full of teens that had been partying and everyone was inebriated. In fact, the group of friends had been going back and forth to a local convenience store that fateful night, buying booze.
They didn’t buy booze just once. They ultimately came to the gas bar and convenience store three times that night, stocking up on more alcohol each time. In short, the gas bar was selling liquor to underage minors. However, it wasn’t until the last few years that they finally admitted they had sold the kids booze. For years they denied the sales had ever happened.

When the case got to trial, the jury was angry that the former owners of the store had blatantly lied about the role they played in the deadly accident. It appeared they did not want to admit they had illegally sold alcohol to minors and that in doing so had precipitated the death of a young boy and created the perfect storm of events that would seriously injure three other teens. The jury handed down a $15 million verdict.

Although the young boy’s family was relieved to have the case finally resolved, they didn’t care that much about the jury award. The main reason they went to court was to try and ensure that others would get the message that it is dangerous to sell alcohol to minors. Nothing would bring the young boy back, but perhaps the fact that the former owners were held responsible for his death would demonstrate that such actions are illegal, immoral and unethical, and that eventually, those who sell to minors or over-serve those already drunk will be held responsible for their negligence.

Wrongful death lawsuits are usually not about revenge. They are a vehicle to make a point and get a message heard. They are one way for a grieving family to achieve some form of closure. If you have been in a situation similar to this one, make contact with an experienced Austin personal injury lawyer. You need to know what your legal rights are and what to expect should your case go to trial.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

If you have suffered a brain injury, you might be referred to a neuropsychologist, who will often recommend neuropsychological testing.

A neuropsychologist is a psychiatrist with a specialty in the science of brain-behavior relationships.  In other words, they deal with how brain function affects your behavior.   The neuropsychologist uses a number of methods, including neuropsychological testing, to evaluate your injury.

Neuropsychological exams usually consist of a series of questions about your condition.  Some tests may be brief, but some may be much more detailed, taking up to a full day.

The test results are used for a number of different purposes.   Depending on the need, the purposes may include (1) diagnosis of an injury; (2) patient care and planning; (3) treatment; (4) evaluation of treatment; (5) research; and (6) forensic neuropsychology — for use in litigation and lawsuits.

For personal injury purposes, we’re interested in all of those categories.  We’re interested in 1-4 to make sure you get better and get the care you need, and we also seek a forensic evaluation for your case.  In the litigation context, the neuropsychologist can help confirm you have a brain injury, document the extent of your injury, evaluate your future course of treatment, and provide opinions about your recovery, both in terms of your daily activities and your work life.

Is using Facebook during a wrongful death trial an ethics issue or a legal issue?

This is one of those cases that make waves — not so much for the case itself, but for the presence of and use of social media during a trial by the jury foreman.

The case itself related to the wrongful death of a woman at the hands of a medical practitioner. The statement of claim filed on behalf of the plaintiffs in 2009, alleged careless and negligent treatment of their mother in 2008. The sons were under the age of 18 at the time the lawsuit was filed, and therefore the father filed on their behalf. They also asked the court for damages in excess of $25,000.

The case did go to trial in Oct 2012, and the jury found in favor of the defendants, and further awarding court costs to the plaintiffs. Many thought that would be the end of the case. It wasn’t. About a month later, the plaintiff’s attorney filed a motion for a new trial. Evidently one member of the jury did not reveal, despite being questioned, that she and her deceased husband had arterial stents. There was also the matter of the court possibly erring by denying the plaintiffs five challenges to ineligible and unqualified jurors from the pool.

Those issues aside, the biggest objection, and leading reason to call for a new, fair trial, was the jury foreman’s use of social media during the course of the trial. He regularly posted on Facebook about being on the jury, made jokes about wanting booze and about how he was instrumental in getting a verdict delivered in under an hour.

On review by a judge, who commented the actions of the jury foreman were not pleasing to the court, the finding for the defendant was allowed to stand. It was allowed to stand because despite the man openly using social media to tell the whole world about his part in the trial, he did not reveal any case details, discuss any of the evidence presented in court and did not express an opinion on the case. This case may yet move forward to a higher court to determine the role of social media use in court cases and what is or is not acceptable for jurors while on duty during a trial.

While this might seem like a minor issue, because everyone uses social media these days and thinks nothing of it, it has ramifications beyond the obvious. Court cases are not to be discussed in public. Evidence is not to be openly talked about in social media settings. Opinions or thoughts relating to the trial, the facts, the deceased or the defendant are not public fodder. Talking about a trial in progress could prejudice the outcome and drastically affect the course of justice. Because those instructions, to not speak about the deliberations are so important, this case is contrary to a number of cases around the country that have resulted in new trials due to jurors’ use of social media.

Social media is far too prevalent in this day and age, and there are just some places it should not be allowed.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

A recent lawsuit between a law firm and its client has revealed an insight into alleged over-billing by the firm.  The firm, DLA Piper, sued energy industry executive Adam Victor for $675,000 in unpaid legal fees.  Mr. Victor counter-claimed, accusing the firm of fraudulent over-billing.

During the course of discovery, the firm was required to produce a number of emails between its lawyers.  When discussing some of the emails, a story on the suit noted:

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a lawyer at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

This article comes out just a few days after I was reading an email from another lawyer about what clients want.  Clients don’t want the highest quality legal services they can get.  That would require reading and re-reading every document, deposing every witness, etc.  Instead, what clients want is value.  Clients want to know that they’re receiving appropriate legal services given the nature of the case.

I’ve long seen this in my practice.   I’m often amazed at the sheer volume of work that some attorneys create on a case.  Maybe I’m hyper-sensitive because most of our work is contingent fee work —- we don’t get paid based on the hours spent on the case, instead we get paid as a percentage of our clients’ recovery.   Because we don’t get paid based on hours, the contingent fee encourages us to be efficient — to do the work necessary to get the case ready for trial, but not to create unnecessary work.  In other words, we’re paid for creating value.

That even makes a difference in our hourly cases.  Because of our experience working on contingent fees and doing the real work to create value, we use the same tactics and skills to the benefit of our hourly cases.  For example, I handled a real estate development dispute where the client had a previous law firm.  The large law firm had charged the client almost $30,000.00 for pre-suit investigation and pre-suit mediation.  When that failed, the client went looking elsewhere and was referred to us.  We filed the lawsuit, had a mediation, and resolved the case.  Our total fees for all of that?  Around $3,500.00.

It’s sad to hear stories about this, but at least it is a good reminder for all of us to keep thinking about our clients first and to remember that they want value.  Are we helping them?  That’s the question we should always ask.

Following a car wreck, people are usually in a panic about what to do.  But your actions following a car wreck can make a difference in your recovery in any future claim.  Therefore, it’s important to know what to do in the days and weeks following your wreck.

AT THE SCENE:

In some accidents, your injuries are so severe that you can’t take any action at the scene.  But in general, there are a few things you should do at the scene, if possible.

1.  Call 9-1-1.  It is important that you have a police officer at the scene to fill out the necessary paperwork.  Some insurance companies are skeptical of claims if no police officer is called.  Additionally, while the people who hit you might be nice that day, people have a way of changing their story as time goes by.  It is more difficult for the other driver to change his or her story if the officer has properly filled out the report and documented the drivers’ descriptions of the wreck.

2.  Get names and contact information for any witnesses.  Even if the police show up, most police officers do not get the names and numbers of most of the witnesses.  If you don’t get contact information for the witnesses while you are all still at the scene, it can be difficult, if not impossible, to find them later.

3.  Take photos.  We all know a picture is worth a thousand words.  If possible, take pictures at the scene of the vehicles involved in the wreck, the site of the accident, any debris left in the roadway, any skidmarks, and any other evidence that you think might be useful at a later date.  Once you leave the scene and it’s cleaned up, you might not have another opportunity to obtain that type of evidence.

AFTER THE SCENE:

1.  Get medical care as needed.  If you think you might be hurt, go see a doctor.   When you see the doctor, make sure to fully explain your injuries.  Most insurance companies today use computer programs to evaluate claims, and the computer programs only use information that is contained in medical records.  Unfortunately, when people go see doctors, they are often intimidated or under stress, and the patients don’t tell the doctor about all the problems the patient is having.  In many cases, I suggest writing a list of problems and then taking that list to your doctor.  Taking a list will help make sure that you don’t forget to tell your doctor anything.

2.  Follow your doctor’s advice.  It is important to follow your doctor’s advice.  If the doctor tells you to attend physical therapy, then attend physical therapy.  If the doctor tells you to do home exercises, then do the home exercises.  If the doctor tells you to follow up at a later date, then follow up.  Following your doctor’s advice will give you the best chance of recovering from your accident.  Additionally, insurance companies and their lawyers are just looking for reasons to not pay you the full value of your claim, and they’ll use any failure to follow your doctor’s advice as an opportunity to short-change you.

3.  Document your injuries and limitations.   If you have visible injuries, such as bruising, swelling, or injuries that require a cast or brace, take pictures to help document the extent of your injuries.  Those photos can be invaluable in helping tell an insurance company or a jury about the extent of your injuries.

Additionally, document how the wreck has affected you.  In almost all cases, you will be asked to tell an adjuster or a jury how the wreck has affected you and your family.  If you document that type of information — through a diary, journal or other list — during the process, you’ll almost always do a better job than trying to remember the affects several months or years down the road.

While I don’t have any studies to support it, I am convinced that clients who document their injuries are able to achieve better recoveries than those who do not.

4.  Don’t settle your claims too early.  Many insurance companies make a practice of the “swoop and settle,”  a tactic where they try to entice you to settle your claims before you know the true extent of your injuries.  Don’t be a victim of this tactic.  Generally, you should wait to settle your claims until you have healed or your doctor has told you that you’re not going to heal, but you’ve made as much progress as you can.

5.  Don’t agree to a recorded statement.  Insurance companies always ask you for a recorded statement.  Unless you’re making a claim on your own policy for uninsured/underinsured motorist, personal injury protection, or MedPay, you don’t have to give the statement.  The statement is just another way for the insurance company to try and convince you to say something that compromises your claim.

6.  Talk to a personal injury lawyer.  Most of us give free consultations.  Don’t settle your claim without knowing your rights and how a settlement might affect those rights.  We routinely see claims where unrepresented victims tried to settle their claim without using a lawyer and it ended up costing them significant sums.  Additionally, if you try to settle your claim without a lawyer, you might make a mistake that hampers your ability to make claims with any underinsured motorist policies, negotiate with subrogation carriers, etc.  At a minimum, take a free consultation so you minimize the risk that you make a mistake.

Someone needs to take responsibility for the brave souls who fought for our country. If not government, then the Intrepid Fallen Heroes Fund.

The government has been saying for some time now that they do not have enough funds to treat the enormous number of psychologically and physically damaged troops returning home from Afghanistan and Iraq. To throw their hands up in the air and cry defeat would be inexcusable. Sourcing funds to help veterans, the government partnered with the Intrepid Fallen Heroes Fund (Fund), an entrepreneurial and dynamic group busy raising $100 million to erect clinics on military bases.

The purpose of the new buildings is to treat and research traumatic brain injury and post-traumatic stress disorder, the main and extremely devastating results of improvised explosive devices (IEDs). The Fund is blessed with the ability to bypass government bureaucracy when dealing with construction projects, and is able and willing to fund medical advances to help returning vets.

A brainchild of 9/11, the Fund has been credited with building a burn-victim and amputee rehabilitation center in San Antonio, Texas and a stellar brain injury center in Bethesda, Md. Both facilities are considered to be among the nation’s top medical facilities that specialize in treating injured troops. They offer very targeted and specific treatment, and provide the opportunity for all doctors treating a patient to meet with them at once, so they are all on the same song sheet, treatment wise.

Vets treated in these facilities are not rushed from one doctor to the next. They do not bounce around to different physicians, and unlike other hospitals, there are a number of other alternative treatments for patients. For instance, the injured may be helped by service dogs or art therapy.

The plan is to build seven to ten more clinics at the largest military bases in the U.S., based on the unique hub and spoke model. Military officials hope to streamline treatments by sending patient information up to the research section and subsequently making use of treatment modalities suggested, based on the initial information.

Already underway is a clinic in Virginia at Fort Belvoir and in North Carolina at Camp Lejeune. More facilities are in the works for Fort Bliss, Texas; Fort Carson, Colorado; Fort Bragg, North Carolina, Fort Hood, Texas; and Joint Base Lewis McChord, Washington. Although the clinics are built and funded by private enterprise, once they have been completed, the base takes over control, operating the clinic, staffing it, and making sure their services are second to none. Things are looking a great deal brighter from veterans returning home from deployment overseas, and it’s about time.  With any luck, these models and research will lead to successes that can be extended to the private sector to help private individuals too.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

It seems to have taken a number of highly-publicized professional athletes to die by their own hand before people started more seriously looking at the long-term issues of traumatic brain injury.

Athletes with traumatic brain injury who are still alive may well be wishing they had known more about the cumulative effect of concussions during their days playing their sport of choice – be that hockey, football, soccer or volleyball. Many professional athletes now estimate that they have sustained eight or more known concussions throughout the course of their career. While that seems like a small number, the brain doesn’t count. Traumatic brain injury seriously affects those who suffer from its effects. Many parents wonder if they should sign their children up for school sports like football, when concussions are a common occurrence.

It has only been very recently that more educational institutions have started to pay attention to what concussions mean in the long-term for its athletes. Since the spate of hockey deaths over the last few years, many state colleges have begun to implement programs specifically focusing on traumatic brain injury. With some luck, perhaps a recent study underway in Nebraska will help others across the nation treat concussions.

The CDC recently released evidence that concussions for kids and adolescents have jumped sixty percent in the last decade. That number has frightened doctors into looking more closely into how brain injuries happen and what can be done to help victims. One doctor in particular, at the University of Nebraska, wanted to drive a project looking for more answers about traumatic brain injury.

The Center for Brain, Biology and Behavior was launched two years ago, by Dr. Dennis Molfese, whose main goal is to try and determine what people were like “before” they sustained a head injury. Often that vital piece of information is missing after the fact. Identifying the missing pieces of the puzzle, Molfese partnered with the Ivy League and the Big 10 conference to closely examine the brain, before and after concussion, with one burning question in mind: “Did people really recover from concussions and if so, to what extent?”

The initial research begins with baseline tests on the brains of athletes at the start of their season. The baseline is then used as a benchmark to compare with subsequent tests taken later, after the participant has sustained a concussion. The doctor hopes to determine how the brain has changed, how that affects behavior and how do they recover (or do they) over the long-term.

Although football seems to be the sport in the spotlight most often, the risk of concussion exists in many other sports. Perhaps this type of research may benefit all players in sports where the risk of brain injury is a very real one, every time they play.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Yesterday, an attorney friend bought me lunch in exchange for me giving him some advice about making a claim after he and family members were rear-ended (likely by someone on a cell phone).  One of the things he was disappointed about was that the insurance company wasn’t taking responsibility and was treating his family unfairly.

I had to warn him that he wasn’t special — that’s par for the course.

And it seems like a good opportunity to break out the Top 10 Insurance Myths from our friends over at Texas Watch, one of the only grassroots groups that is looking out for the interests of consumers over at the legislature.  Here are their myths:

1.  You’re Covered.

2.  Insurance Companies Always Pay Claims Fully & Promptly.

3.  Texas Just Needs More Insurance Companies.

4.  Your Insurance Company Is Loyal To You.

5.  Bad Weather Means Insurance Rates Must Rise.

6. Mandatory Arbitration Helps Policyholders.

7.  Protecting Policyholder Rights Raises Rates.

8. Giving Insurance Companies What They Want Is Good For Consumers.

9.  Insurance Companies Are People Too.

10.  Insurance Shopping Is Easy.

To read the full article and commentary click on the link here.

New evidence shows brain trauma healing rates in children may not be predictable.

There is good news and bad news on the horizon for child victims of brain trauma. The bad news is recent studies suggest it is difficult to predict with any degree of accuracy how well the children will do in the long term, despite a higher survival rate.

Over the years, medical technology has improved so that children who sustain brain trauma now have a higher survival rate. The difficulty is no one is able to predict how they will fare in later years. Brain injuries in kids are very complex to monitor, as their brains are still in the process of growing and forming. Protecting them from further accidents and infections is a major priority.

The latest research, published by the Canadian Medical Association Journal, suggests the age of the child when injured may play a major role in recovery and that the common belief that younger brains are more elastic does not appear to be the case. What is painfully evident is that there is not enough information to formulate any solid theories about how to care for children with brain trauma or how to determine when and if to stop medical care.

The major issue when dealing with traumatic brain injuries in children appears to be what psychological issues they may sustain that do not manifest until later. When their motor skills recuperate, it may mask their psychological issues, largely because an injury at an early age may radically alter how the brain develops. While the recovery of motor skills is a cause for celebration, no one may notice the cognitive difficulties until further down the road.

The ongoing research into traumatic brain injury is encouraging in that it has the potential to open doors for adults and children. The good news is that there is more research into how head trauma affects children, as they are among the growing numbers of victims with brain injuries. Most children play a number of sports, such as hockey, football, soccer and volleyball. Each one of those sports has the potential for injury to occur.

One only has to look at the most recent lawsuits against the National Football League to know how playing football results in brain trauma or read about the suicides of sports figures whose constant exposure to concussions affected their ability to think normally. The world is not what it once was, and we need to look out for the younger crowd, as well as continue to make advances in medical science to treat head traumas in adults.

Head injuries are not just caused by playing sports. Many times a fall or an accident will result in brain damage. If that is the case, and you have been injured in an accident, seek the skills of an Austin personal injury lawyer who is familiar with handling head injury cases. He or she will know about the long-term effects of such an injury. Damages may be higher in traumatic brain injury cases. Speak to an Austin personal injury lawyer to find out what your rights are, and what to expect if you file a lawsuit.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Exciting new technology may hold the key to better treatment for brain injuries.

An exciting development in science is the increasing use of innovative technology in the medical health field. The latest new research, being conducted by the Department of Defense, deals with using nanotechnology to treat a wide range of injuries from infections to traumatic brain injury and treat them more rapidly than is possible now.

The project, referred to as In Vivo Nanoplatforms for Therapeutics, hopes to create a vehicle to deliver various forms of medications and other treatments. This is the stuff science fiction is made of, but it has the potential to become reality. The idea behind this project is to use new classes of nanoparticles, capable of sensing a patient’s physiological well-being, to treat abnormalities and other conditions. Even though this may be reminiscent of the best stories in the world of fiction, the potential is mind-blowing.

A particle, when referring to this kind of technology, is a small object considered to be and to act like a whole unit as it relates to its properties and transport capabilities. A nanoparticle is the smallest of the small particles and has a wide variety of potential for use within not only the human body to deliver various payloads but in the optical field.

The most exciting potential is the possibility that these nanoparticles may help revolutionize the treatment protocol for traumatic brain injury, especially for soldiers returning from war. There is talk of coating these particles with a type of ribonucleic acid (RNA) because the smaller molecules are capable of binding to other messenger RNA molecules to deliver what they are carrying internally to its end destination.

The key to the effectiveness of this technology is that the payload injected into an individual’s body targets the disease process and halts it by delivering therapeutic but passive ultrafine particles that reduce side effects and prevent an immune system response. While this idea itself is not new, it is going beyond the original nanoscale systems created to monitor soldiers’ health and body systems. The hope is to move forward into diagnosing and treating.

This future-looking technology may be an important partner to those who have been exposed to improvised explosive devices during the course of their tour of duty overseas. The military does have a blast gauge attached to helmets, a vehicle or personal gear that is capable of measuring the amount of exposure a solider gets in the vicinity of an explosion; this helps in diagnosing brain injuries more accurately. However, if the nanoparticle technology is as successful as hoped, the lives of soldiers who sustain brain trauma may improve significantly.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.